DOJ Issues Refreshingly Broad New Protections for Religious Liberty

The Trump administration has drafted a long list of ways religion is protected, including extensive instructions for federal agencies.

By Rachel Alexander Published on October 11, 2017

The Trump administration published sweeping new guidelines Friday to protect religious freedom. The 26-page memo “interpret[s] religious liberty protections in federal law.”

Much of the memo incorporates the Religious Freedom Restoration Act. That act was passed in 1993 with almost unanimous support from both Republicans and Democrats. It was signed into law by President Bill Clinton. At the signing, he called religious freedom “perhaps the most precious of all American liberties.”

He Democratic successor, President Barack Obama, did not agree. His administration’s most famous assault on religious freedom was the “contraception mandate.” Bureaucratic rules tried to force religious bodies to fund contraception through their insurance plans. But that was not the Obama administration’s only assault.

20 Principles

The memo lists 20 principles of religious freedom. They cover several areas where government action has endangered religious freedom in recent years.

One is that religious freedom includes the right to abstain from action. This responds to Christian business owners who object to servicing same-sex weddings because doing that violates their religious beliefs. Lower courts have ruled against them. The Supreme Court has scheduled one of these cases to be decided this term. Masterpiece Cakeshop v. Colorado Civil Rights Commission involves a baker who objected to baking a cake for a same-sex wedding.

Another principle is people do not give up their religious freedom in the public sphere. They don’t give it up in the marketplace or dealing with government. This likely was a response to a recent trend to confine the “religion” that must be protected to churches and homes.

Religious freedom includes the right to abstain from action.

One principle cites the SCOTUS case Trinity Lutheran Church v. Comer. It states that government may not target people or entities for special treatment based on their religion.

In Trinity, the court held that a church could not be denied a state grant because it was a church. The grant was not related to religion. It was for resurfacing preschool playground surfaces.

Building on Trump’s Previous Efforts to Expand Religious Freedom

The twelfth principle states that “RFRA does not permit the federal government to second-guess the reasonableness of a religious belief.” It states that the Department of Health and Human Services may not second-guess a religious employer which refuses to provide contraception.

HHS announced the new policy on Friday. This dealt a huge blow to Obamacare’s contraception mandate. It built upon a previous order Trump issued in May. That order stated that organizations that object on religious grounds to Obamacare coverage for certain health services may be exempt.

The guidelines also expand upon a previous order by Trump which curtailed the Johnson Amendment. In May, Trump signed an executive order that directed the executive branch to limit its enforcement of that Act. The Johnson Amendment bars churches and tax-exempt groups from endorsing political candidates. The memo says the IRS must treat religious and secular nonprofits equally.

Most of the last few principles lay out existing legal aspects of religious freedom. Title VII of the Civil Rights Act of 1964 prohibits covered employers from discriminating on the basis of religion. However, another principle notes that there is an exception for religious employers. They may choose to employ only those whose beliefs and practice are consistent with their religion.

Agency Guidelines

The second half of the memo contains guidelines for agencies on how to follow the principles. The memo suggests that rulemaking agencies name “an officer to “review proposed rules with religious accommodation in mind.” RFRA is mentioned often as a reference.

The memo ends with an appendix of legal analyses. It includes congressional acts, the Constitution and SCOTUS decisions. They back up the principles. They’re likely there in order to preempt legal challenges.

The ACLU has already filed a lawsuit.

Though the executive order falls well within the president’s power, it will not go unchallenged. Predictably, LGBT advocates claimed on Friday that the guidelines remove their federal protections. Within a few hours after the HHS guidelines on birth control came out, the ACLU filed a lawsuit.


Follow Rachel on Twitter at Rach_IC.

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